Fourth Amendment

A Libertarian Judge Champions Privacy Rights Against Warrantless Police Searches

Justice Clint Bolick dissents in Arizona v. Mixton.

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Since joining the Arizona Supreme Court in 2016, libertarian litigator-turned-jurist Clint Bolick has made a name for himself as a judicial defender of constitutional rights. Justice Bolick did so again this week in a case that pitted the U.S. Supreme Court's flawed Fourth Amendment jurisprudence against the more expansive privacy protections guaranteed by the text of the Arizona Constitution.

The case is Arizona v. Mixton. At issue was whether the police must get a warrant before obtaining a suspect's I.P. address and internet service provider (ISP) subscriber information. With that info in hand, the police are able to determine which websites a suspect has visited. Taking its cue from the U.S. Supreme Court—which said in Smith v. Maryland (1979) that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties"—a majority of the Arizona Supreme Court ruled in favor of warrantless I.P. address and ISP data searches.

Writing in dissent, Justice Bolick faulted his colleagues for shortchanging the text and history of their own state constitution. As Bolick noted, according to Article 2, Section 8 of the Arizona Constitution, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." But in the present case, the majority placed "the private affairs clause in lockstep with the less-protective Fourth Amendment as construed by the United States Supreme Court, thereby draining the meaning expressed in the clause and intended by its architects."

To be sure, Bolick noted, "the federal constitution is the baseline for the protection of individual rights below which the states cannot go. But in our system of federalism, states are free to provide greater protections." And the text of the Arizona Constitution, Bolick argued, most certainly does offer greater privacy protections than what the U.S. Supreme Court has allowed in its Fourth Amendment precedents.

In fact, Bolick wrote, those federal precedents should have had no sway in the present case. When the Arizona Constitution was adopted in 1912, Bolick noted, the term "private affairs" was widely understood "to broadly encompass personal and business matters, even if transmitted through third parties, thus making Arizona's constitutional provision irreconcilable with the later-emerging federal 'third-party' doctrine allowing any information divulged to a third party to be obtained by the government without a warrant."

In short, the framers of the Arizona Constitution "aimed, as plainly as they could, to protect our private affairs from unsupervised government scrutiny." Unfortunately, thanks to "the majority's non-textual opinion," Bolick concluded, that meaning has been drained "from this essential constitutional protection."

The Arizona Supreme Court's decision in Arizona v. Mixton is available here.

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  7. I understand his general argument and it isn’t without a little merit in other circumstances. However, this is probably the worst place and case for making it because it doesn’t apply. I don’t think he has the first clue how the internet works other than that you push a button to go here and there.

    First, you don’t own your IP. At best you borrow one for a limited period of time, but in isolation from other data, it is essentially public information and any website you go to records your IP address. That would include any federal or state website, and it often includes most advertisers where your computer is cookie enabled. Amazon and Google know every damn place you go, how long you stay there, and what you look at. Even the general public can go look up the IP address of any website through a WHOIS tool. IP addresses in isolation are the absolute worst case of worst cases of privacy expectations and simply laughable.

    The idea that the police must get a warrant to access public information that is accessible to everyone else just makes this judge sound ignorant.

    The IANA governs IPs and the idea that you have personal autonomy over an IP at any point just because you are using it is the same as arguing that police cannot surveil any piece of road you happen to be on and where you go when you use those roads. What you have and do in your car [so long as it isn’t visible], yes… where your car goes, no.

    Instead the test is generally “a reasonable expectation of privacy”. No such case can be made for the use of an IP address itself. If someone is ignorant of how a technology works, it doesn’t make them impervious to laws that govern it.

    1. Then again, this is a Damon Root column. Apparently the criteria for being a senior editor at Reason is that you merely have to write about something, not that you have to understand anything about it. Really Damon…. it’s okay to question self-claimed libertarians and to educate yourself on a subject before you write about it.

    2. The question hinges on data obtained through an administrative subpoena, not on publicly available IP databases.

      And the appeals court agreed with Mixton, but told him to fck off anyway.

      “The court concluded that, although the State
      obtained Mixton’s ISP subscriber information in violation of the Arizona
      Constitution, suppression of the information was unnecessary because the
      good-faith exception to the exclusionary rule applied, as no precedent
      prohibited the search, controlling law deemed the search reasonable, and
      law enforcement reasonably relied on existing precedent. I “

      1. in other words, they police have been breaking the law for a long time, so we must let them continue.

    3. Bluwater wants gubmint to have easy access to your activities and interests. Got it.

      Must not think it is any way equivalent to personal papers just because other people may be able to identify the key (IP address) to one’s box of personal papers (cookies) and that person may leave clues as to what is in it. Bluwater believes cops should have no impediment to trolling around to see where you have been. Prolly okay with GPS trackers on people’s cars too since that person is just on the road and police “…police can(not) surveil any piece of road you happen to be on and where you go when you use those roads.”

      FO slaver.

    4. Uhm, no. There are plenty of situations where the police must get some level of elevated permission to get or use information that you or I can get for free. For a trivial example, I can stop you in the street and ask you anything I want, then use it for any purpose. Police, on the other hand, could have to have probable cause and to inform you of your rights before asking the same questions.

      Moreover, the issue is not that the IP address is freely available to everyone. It’s an address used in a communication. I can see my address and have to know yours to send the message where it’s going. You can see mine to know where the message came from. That gives no right for any third party to eavesdrop on the message or even on the addresses between the communications.

      And, as relevant here, the government is supposed to need a warrant before demanding that you turn over my address. I may not have a reasonable expectation of privacy from you but I most certainly have a reasonable expectation of privacy from outsiders.

  8. So why is the judge who correctly applies the law always on the losing side?

  9. As a liberal (and therefore an ACTUAL libertarian) I concur with this judge. Claiming that I have some ability to be my own service provider and so avoid turning over my data to a third party provider is akin to claiming I could manufacture my own car.

    I’m entitled to privacy in my car (to a point) and I should be when searching the web.

    Kudus Judge Bolick.

  10. The liberal bent of the Arizona Supreme Court is a flaw of modernity and those to use liberalism as a form of governance when liberalism is merely a set of axioms about human nature which itself is flawed. Having little of a foundation beyond human reason, liberalism is cast adrift upon the ever changing waves of incomplete knowledge about the nature of human beings, and thus the flawed reasonings of liberals. liberals eschew traditions and histories in their reasoning thereby losing the wisdom of both as they contribute so much to a civil culture, no longer found in western culture, as it is dominated by leftism (Marxism) being a natural tenancy of liberals who have lost their histories and traditional teachings.

  11. Rand, you make sweeping generalizations amounting to nothing. Do you agree with the judge or otherwise?

  12. It’s 2021 folks. Virtual private networks are dirt cheap as a service, as are a number of privacy tools that block trackers and other snoopware. If you value your privacy, a few simple precautions are all that is currently necessary. Use DuckDuckGo for search. Use Signal instead of SMS or WhatsApp. Pay a dollar a month for an encrypted email service. Get off of Facebook and other social media platforms.

  13. The Fourth Article of Ammendment of the US Constitution guaratness EACH OF US that we WILL BE secure in our persona, houses, papers, and effects. OK so the IP address (effects) were on his compouter at his HOUSE (houses), but they were also at another location. SO WHAT?!? They remain HIS effects, no? Further, the definitnion of “papers” has changed so much.. I can now type outa legal document, testimony, affidavit, on my computer, safe it as a PDF, even :electronically” sign the collectioin of bits, transmit that “paper” to a court or government office, and it has the full effect under the law as if I’d hand written it on a piece of parchment, hand singed it athen hand carried it to the officials in question. Thus everything he’s done with his comuter, either locallly or via some server somewhere else, remains HIS property and thus exempt search/seuzure under Fourth.
    Further, I can take an “effect” (be it a china plate, a handgun, a signed document, a stack of hudnred dollar bills, my car, my computer,) and place it in the care and protection of some third party, but it ccan remain MINE while in his custody. Thus my “papers and effects” do not necessarily have to be at MY “house” to fall under the protectioins afforded by that Fourth…
    This court, and SCOTUS< have it wrong.

  14. Why do people think that getting an actual warrant is some impossibly onerous mountain for law enforcement to climb? Where you go or who you communicate with on-line should be treated no differently than who you send a letter to or who you talk to on the phone. If the police want to intercept your mail or tap your phone, the have to get warrant. The same should hold true for internet communication.

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